Analysis: Who should really own the DOTA name?

Valve and Blizzard have started legal machinations to claim ownership of a name born in the mod community but are either of them in the right?

Last week, the news was all abuzz with the discovery that Blizzard had, in November last year, filed a Notice of Opposition against Valve over the Half-Life developer’s registration of the trademark DOTA on August 6, 2010. The publisher of World of Warcraft is claiming that the DOTA name is a recognized brand belonging to Blizzard and thus Valve has no right to trademark it.

Valve has moved first in applying for a DOTA trademark

This turn of events is understandable from a business perspective and will determine the way consumers, developers, and publishers look at mods. Because, that is where our story began – with a mod called Defense of the Ancients that was created for the real-time strategy title Warcraft III back in 2003.

Fast forward nine years and what began as a fan-made mod is now a fight for ownership of a potentially lucrative license, linked to the spawning of an entire genre called Multiplayer Online Battle Arena, or MOBA for short. That’s the potted history but who owns the DOTA name now?

From the start, Blizzard noted that, in order for the creators to use Warcraft III’s World Editor to craft the mod, they would have had to have agreed to the End User License Agreement (EULA).

And that documents states, “All title, ownership rights, and intellectual property rights in and to the Program and any and all copies thereof (including, but not limited to, any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, and ‘applets’ incorporated into the Program) are owned by Blizzard or its licensors.”

Warcaft III's World Editor, where the original DOTA was formed

In other words, a person might develop a mod but Blizzard owns it lock, stock, and barrel. It does not matter how much time you’ve dedicated to your mod, Blizzard can take it and use it as they see fit. The modders’ agreement to the EULA is deemed to be their granting of permission for Blizzard to do so.

A quick read through the Notice of Opposition and something becomes clear, it appears Blizzard is lining up its own trademark application and is testing its arguments by opposing Valve’s registration.

Meanwhile, Valve has come to this story late. It was not involved at all with the original mod and makes no secret of that. What it has done is what is always does: hired indie gamers and modders to fully develop their ideas into standalone products. It did this in 1999, when it hired the people who had modded id Software’s Quake to make Team Fortress 2. It did it again in 2003 when it brought in the people who had modded Counter-Strike out of its own Half-Life property. And, in 2007, it hired on the indie team behind the tech demo that would eventually become Portal.

In short, Valve has a history of doing this.

Once part of Quake, now a game in its own right - Team Fortress 2

So, no one was surprised when the company hired the otherwise anonymous IceFrog, who had become the lead DOTA modder after previous creators and developers had left to pursue other interests. IceFrog was handed the reins to the sequel and is now the most recognized name associated with the project. He offers continuity to franchise fans because his version of the original mod is what most players are familiar with.

Valve hires modders and indie developers who have created a great mod/game and gives them the opportunity to take it further. For all the hard work that these modders have put into their creations, they have been rewarded for it.

Blizzard, in filing this suit, might have legal precedent for this course of action but does that make it right?

Its own version, Blizzard DOTA, is an interpretation of the mod cast into the Starcraft 2 universe and, crucially, requires the player to own the parent title. This version of the game isn’t very similar to the original mod given its simplified stats, lack of item recipes, the fact that all the heroes are named after Blizzard characters, mounts have been added, and towers have ammunition. It doesn’t resemble the original DOTA in any way except that it’s a MOBA.

Blizzard DOTA has been created with no input from the original modders

So, although Blizzard is developing a DOTA game, it hasn’t hired any of the people who created this original title for which it is so strongly arguing ownership. Using the shield of the EULA, it is claiming rights to the name and producing a title that it hopes customer will view as the natural sequel to the popular mod.

Which it isn’t.

Blizzard are just using the DOTA name in order to sell it.

Valve, however, is making a direct sequel to the mod called DOTA 2 and has IceFrog leading the development team. The gameplay is the same and the characters haven’t changed, except their looks. In short, DOTA 2 is an updated version of the mod, this time built without Blizzard’s World Editor, and will be a stand-alone game.

Ultimately, this legal battle is more than just two major developers fighting for the rights to a lucrative trademark. This is also about the EULA and the modders who spend their time developing mods. Why should they be kicked off to the side to watch as someone else capitalizes on something they created?

Barring unforeseen events, Blizzard will likely win this battle and presumably register the trademark for themselves. If Valve are forced to change the name of DOTA 2, it may not be too damaging for them as anyone familiar with the original mod will know that its product is the real direct sequel.

The next question is, though, should either of them be allowed to trademark something developed in the wider gaming community? Should it stay free and open to all or are we okay with big companies like Blizzard or Valve claiming ownership? Who should really have the trademark?

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I’ve always been of the mindset that DOTA was Blizzard’s, but this definitely is a tricky legal situation, especially in light of the reasons you brought up. Usually you can predict who will win a case before it even begins but this one might be too close to call.

http://www.facebook.com/seandknight Sean Knight

Thank you!

It could be a very close call, but that will depending on whoever has to make the decision. I just hope Valve wins it because Blizzard isn’t making a DOTA game. All they are doing is making their own MOBA game and then just slapping the DOTA name on it in order to entice people to play it.

zachal

Honestly the creator should have the ownership of the mod, they came up with it they put the time into developing it for the community they should get the rights. If Blizzard took this just cause it was created using their software, sure they probably gave the guy inspiration and the tools but did they make it? did they pay him to make it? no technically he paid them so he could make it. It’d be like a pen company taking my writings just cause I used their product. This is just Blizzard being greedy, they see a product they can make money off of and they milk it dry, look at WoW or StarCraft 2 they broke that game up into 3 parts was it to make it faster? or was it to suck $120 more out of gamers that will undoubtably pay for the game because they want to finish the story? I choose the latter cause I’m a cynical guy but I get off topic…

Trapkick

This kind of resembles Diablo III – Whereas the original creators of the Diablo franchise had nothing to do with the third. If you loved the first two Diablo games you might feel like me and that the third is almost a completely different type of game. Blizzard is getting too big and greedy.

http://www.facebook.com/seandknight Sean Knight

That’s a pretty good comparison. I’m just glad that Valve won the case because I love DOTA 2.